1. www.dlapiper.com 018 May 2016
HR TECH INTERACTIVE 2016
Using Wearables Tech and Predictive Analytics for
Talent Management Anita Lam
Of Counsel (Solicitor Advocate)
Employment Practice
Friday 30 September 2016
2. www.dlapiper.com 130 September 2016
What is Predictive Analytics
Predictive analytics for Human Resource Management
Monitoring of Employees
Using Psycholinguistic Analytics to Detect Insider Risk
What Are the Legal Risks
Other Issues to Consider
Wearable & the key considerations
Questions
Overview
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What is predictive analytics?
Predictive analytics uses statistics, modelling, machine learning,
data mining and more to apply to big data in order to predict
future events & identify trends
Big data
Big data refers to data which is large in volume, found in a
variety of different forms (social media, machine generated data,
website content and usage, mobile apps, sales and billing
system, customer relationship management system, back office
systems, photographs, sensor data, video and voice recordings
and traditional emails and messages), and staggering in velocity
in terms of the speed at which data is created, transmitted,
processed, stored and analysed
Value:
Understand what drives customer and employee behaviour
What is Predictive Analytics?
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Recruitment:
online tests: personality testing, cognitive-skill assessment,
and multiple choice questions
quest games
pre-hiring checks
Talent Development:
compile a list of behaviour of excellent managers and poor
managers
“sensor badges” (or sociometric badges)
corporate health checks
Retention and Turnover:
predict who would most likely become a retention problem
identify the bad leavers
Insider Risks:
to help detect internal fraud and identify evidence of
employee's misconduct
Predictive Analytics for Human
Resource Management
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What are the common problems concerning
workplace monitoring?
Examples of common problems:
Covert surveillance
Disgruntled employee
Underdeveloped or no monitoring policy
Misuse of information/data collected from employee
monitoring
Impediment to internal investigation
Monitored email
Remember: DDE
Common problems encountered
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Data Privacy
Privacy impact assessment
Information governance - manage information
Monitoring and data collection policies
Personal Information Collection statement
Limits of lawful monitoring
Cross-border data transfer
Security & Ownership of Data & Insight
Data security: ranking confidential information &
anonymise data
Ownership of data & insight
Data retention & deletion
Algorithm developed for the company – ownership
issues
What are the Legal Risks?
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Data being exploited
Who has control over raw data
What if data is exploited inappropriately
Tort of harassment
Unlawful discrimination
Integrity of data
Inappropriate box scores of human performance &
behaviour - systemic bias & indirect discrimination
Inappropriate intervention action
Algorithm bias
Recent case in the UK
What are the Legal Risks? (cont'd)
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Homogeneous workforce
Employee relations
Inappropriate model
Ability to retrieve data - if there is a dispute
Other Issues to Consider…
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Introduction to wearable technology
Two key questions:
Can employee participation be mandated?
How should employers deal with the
generated data?
Wearables
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Wearable technology is basically small and compact
electronic devices designed to be worn by a user
Other e.g. patches, glasses, tracking devices
(locating goods & vehicles)
Range of functions from health and fitness to
security and have in the last couple of years started
gaining traction with consumer users
Two thirds of insurers expect wearable technologies
to have a significant impact on the industry within
two years (Accenture)
In the US workplace - 90% of companies offer
wellness programs. By 2018 it is estimated that
more than 13 million wearable activity-trackers will
be used by employers for such programs
Welcome to Wearables
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Can employees be compelled to wear a wearable
device?
In short- no. Not unless the obligation is written into their
employment contract and even then there is no obligation
to wear a device outside of work hours
If an employee refuses and any prejudicial action is taken
against them an employer may face an employment law
claim on the basis of bullying
Employee Participation
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Employers are 'Data Users' or 'Data Processors' of
data from wearables by virtue of them recording,
obtaining, accessing or using such data
Information is 'Personal Data' as it relates to an
individual employee (e.g. about the health/ fitness)
who can be identified by it (by looking at their
individual results)
Health data is 'Biometric Data’ - higher standard
applies
The Data Protection Act and Wearables
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Who owns data collected by wearables?
Check the employment contract
Company mobile phones and laptops set precedent
over ‘company-owned’ personal data
A tracker is leased to an employee as an incentive
much as a mobile phone might be, so employers are
within their rights to claim ownership over the data
generated as long as they make this clear in the
employment contract
Who owns the Data?
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Five top tips for employers wanting to collect data from
Wearable tech:
Have a clear policy in place outlining how such data will
be used and for what purposes
Implement a robust security policies and measures
Insert clear terms regarding employee data into
employment contracts which extend to use of
Wearable devices
Have employees sign consent forms
Focus on the aggregate and avoid looking at data on
the individual level
Wearables- Tips for Business
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People decisions should involve people in making them.
Algorithms cannot and should not be used to remove the
human dimension in the decision-making process
Mindful of EU/UK issues
You cannot compel employees to wear wearable devices
Takeaway Points
16. www.dlapiper.com 1530 September 2016
Q&A
Anita Lam
Of Counsel (Solicitor Advocate)
Employment Practice
Hong Kong
T +852 2103 0650
anita.lam@dlapiper.com
Winner of Asian Legal Business Hong
Kong Law Awards 2016 "Labor and
Employment Law Firm of the Year"
Liz
Is the information personal data?
In order to "relate" to the individual, the information may be "obviously about" that individual or "linked" to them. – Health data is obviously about user.
The information relates to them in their personal, family, business or professional life. – Relates to their personal life e.g. exercise routine
If the information is to be used to inform or influence decisions affecting that person, it is likely to "relate" to them.- It could be used in this way e.g. insurance premium cost decisions.
It will be relevant to ask whether the information impacts or has the potential to impact on the person's life.- Could impact an individual if used in a discriminatory way.
What obligations are there on employers with respect to such data?
Some employers many not collect any fitness data, but it’s worth taking the necessary steps to comply with the law if you intend to look at this data at any stage.
To comply with the DPA employers must explicitly set out how they plan to use any gathered data and ensure there are appropriate security measures in place to protect it. In a nutshell, if you intend to capture and monitor data, you have to be explicit that you will do so and take steps to ensure the data is secure.
There are further layers of complication when we consider that health data is sensitive personal data according to the Act. This does not prevent such data being processed but it limits the circumstances in which it can occur. The employer must be able to satisfy one of the sensitive data conditions (see next slide)
Liz
Who owns the data created by the device?
In terms of who owns the data generated by these devices, this depends on the employment contract.
Presently, we only have the example of technology such as company mobile phones and laptops to set a precedent over ‘company-owned’ personal data. A tracker is leased to an employee as an incentive much as a mobile phone might be, so employers are within their rights to claim ownership over the data generated as long as they make this clear in the employment contract.